Saturday, July 21, 2007

Give and take

An Executive Order released yesterday gave to post-9/11 detainees something for which they've been fighting: application of Common Article 3 of the 1949 Geneva Conventions to the "program of detention and interrogation operated by the Central Intelligence Agency" (§3(a)). In signing the order, however, President George W. Bush took something away from detainees, too; specifically, the respite from CIA detention-for-interrogation that's said to have been imposed in the wake of the U.S. Supreme Court's holding, a year ago in Hamdan v. Rumsfeld, that U.S. agents are bound to obey Common Article 3, which states:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

The order takes as well some of the force out of subsection 1, for it takes pains to define terms like "mutilation," "cruel" treatment, and "torture" within the confines of a U.S. War Crimes Act weakened post-Hamdan by amendments contained in the Military Commissions Act of 2006. (The order likewise affirms a 2005 congressional ban on "[c]ruel, inhuman, or degrading treatment or punishment," as those terms are defined under U.S. law, and not according to broader interpretations like those that the European Court of Human Rights has put forward in cases such as A v. United Kingdom.) The order may take from the article's final paragraph, too, for the Washington Post's Karen de Young reported:
A senior administration official said that the new rules do not require that the International Committee of the Red Cross have access to CIA prisoners. Many other nations interpret international treaties as requiring such access for all detainees everywhere.

Of further note are the qualifiers used in describing permissible conditions of confinement of persons whom the CIA detains for interrogation. Abuse is banned, but only if it is "willful and outrageous"; acts that denigrate religion, only if they are "intended" so to denigrate (§3(b)(i)(E), (F)). Consider too the order's assertion in §3(b)(iv) that the program will comply with Common Article 3 as long as detainees "receive ... necessary clothing" and "essential medical care." The use of those adjectives leaves open the inference that the CIA needn't provide clothing or medical care that is not "necessary" or "essential" but that would make a detainee feel comfortable; that is, feel human.
A final point: Make the contestable assumption that all captives are subject to detention, regardless of where they are seized, for the reason that "[t]he United States is engaged in an armed conflict with al Qaeda, the Taliban, and associated forces" (§1(a)). Even so, as I've written, detention would be justified only for the purpose of securing a detainee's absence from the battlefield or presence at trial. Neither the law of armed conflict nor the law of criminal justice permits detention solely for interrogation; moreover, both establish legal boundaries within which a detainee is to be treated humanely even on refusal to answer questions unrelated to name, rank, serial number. The order rests, in short, on infirm legal foundation.

1 comment:

Abulafia said...

Our SCOTUS/military/general appellate law blog has posted also on the EO HERE.

My impressions accord generally with yours. I'd note also that while in the Hamdan Commissions case, the Commissions judge dismissed the case, specifically rejecting (with regards to a jurisdictional argument) the Administration's reliance on the 2002 Presidential declaration that all Al Qaeda, Taliban, and "associated forces" are de jure "unlawful enemy combatants," the EO now restates the Adminstration's reliance on that very same 2002 declaration, in claiming that all who fall into those categories do not merit GC III protections.

Also of note is a Washington Post article recently (cite via my link) where a "senior Administration Official" states that those "basic necessities" the EO guarantees do not include "sleep."

Very interesting clash between the three branches.

(Our blog covers non-legal matters too, so don't have high expectations for the sort of enlightened discussion you have over here, chez moi.)

H Lime